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Exhibit CC 09-07-2010 No. 1 EXHIBITS BEGIN HERE cc- 7/7/to -ff-/ E XHIBIT TO: City Council qt 7 � s FROM: Carol A. Korade, City Attorney C U PE RTI N O DATE: September 7, 2010 RE: Commissioner appointments and term limits Introduction and Summary of Conclusions. Per the interviews today, I have analyzed Section 2.80.020 of the Cupertino Municipal Code, which imposes term limits on Fine Arts Commissioners, and City Council Resolution No. 10 -048, which provides the procedure for appointment of members of advisory bodies, to determine whether a former Fine Arts Commissioner who previously served on the Commission from January 2001 to January 2009 can be appointed to fill a partial term that expires in January 2013. I conclude that Section 2.80.020 should be interpreted to allow appointment of the former Commissioner to fill an unexpired term of less than two years, beginning January 2011. Further I conclude that the provisions of Resolution No. 10 -048 do not prevent the appointment. Finally, while the Resolution requires that a candidate for an unexpired office be interviewed less than 90 days before the term is filled, the Resolution exp licitly allows the Council to override its terms on a case -by -case basis. Discussion. Local legislation is subject to the ordinary rules of statutory construction.' As such, in interpreting Cupertino Municipal Code Section 2.80.020 and Resolution No. 10 -048, City Council's intent should be ascertained by looking primarily to the words of the legislation, giving them their usual and ordinary meaning, and reading them so as to give the legislation a reasonable construction. 1. Chapter 2.80 Allows the Council to Appoint the Former Commissioner to a Term Starting in January 2011. Section 2.80.020(A) provides in part: The term of office of the members of the Fine Arts Commission shall be for four years and shall end on January 30th of the year their term is due to expire. No commissioner shall serve more than two consecutive terms, except that a commissioner may serve more than two consecutive terms if he or she has been appointed to the Commission to fill an unexpired term of less than two years. Section 2.80.030 further provides that "[i]f a vacancy occurs other than by expiration of a term, it shall be filled by the City Council's appointment for the unexpired portion of the term." 1 Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (Windward Associates), 86 Cal.App.4th 534, 549 (2001). 2 People ex rel. Allstate Ins. Co. v. Weitzman, 107 Cal.App.4th 534, 544 (2003). Here, the former Commissioner has served on the Commission for two consecutive terms and is being considered for appointment to fill an unexpired term. Looking to the usual and ordinary meaning of the word in Section 2.80.020, the former Commissioner may be appointed to fill the unexpired term if it is for less than two years. Because this term will expires in January 2013, in order for this unexpired term to be less than two years, the former Commissioner's appointment needs to be effective January 2011. Further, because Chapter 2.80 does not include any restrictions as to when a candidate must apply or be interviewed for an appointment to the Fine Arts Commission, Council may at this time interview and appoint the former Commissioner even though the appointment will become effective January 2011. As a practical matter, the Commissioner may attend and participate in the meetings, but may not vote on decisions until the term becomes effective. It should also be noted that because such appointment would constitute a third consecutive term, which is permissible under Section 2.80.020(A) only for an unexpired term, the Council would not be able to reappoint the former Commissioner for a full term after January 2013. 2. The Term Limits in Resolution No. 10 -048 do Not Apply to Appointments for Unexpired Terms and Council May Waive Any Provisions in the Resolution. The term limit restriction in Resolution No. 10 -048 does not prevent the former Commissioner from seeking appointment because it does not apply to unexpired terms. Section A7 of the Resolution provides. A member of an advisory body, having completed two consecutive terms, must wait two years after the term would have normally ended before being eligible to apply for the same commission or committee. However, Section D1 provides that "the term limit restrictions listed in this resolution do not apply to temporary appointments for unexpired terms." Thus, Section A7 does not prevent the former Commissioner from applying for the unexpired term. Further, the Resolution's provisions as to when a candidate for an unexpired term must be interviewed can be waived by Council. Section Cl of the Resolution provides: If a vacancy occurs for an unexpired term and interviews for appointment to that advisory body have been conducted within the previous ninety days, the unexpired term may be filled from those applications following the required posting of the vacancy. This provision would prevent Council from interviewing the former Commissioner more than 90 days before the term begins in January 2011. However, Section D2 of the Resolution specifically provides that "[a]11 provisions of this resolution shall apply unless otherwise decided by the City Council on a case -by -case basis." Thus, it expressly permits Council to override its provisions if it choose to appoint the former Commissioner. Conclusion. Section 2.80.020 allows Council to appoint the former Commissioner to fill an unexpired term of less than two years, provided the appointment becomes effective January 2011. Resolution No. 10 -048 does not restrict appointment to an unexpired term, but does require interviews to be conducted within 90 days of filling the term. However, this provision may be waived by Council.